"JUSTICE SCALIA: I’m curious, when -­ when did — when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted? Sometimes — some time after Baker, where we said it didn’t even raise a substantial Federal question? When — when — when did the law become this?

MR. OLSON: When — may I answer this in the form of a rhetorical question? When did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate schools."

OH SNAP.

Yeaaaah, Scalia was not pleased by that counter-argument._________________"No, but evil is still being --Is having reason-- Being reasonable! Mousie understands? Is always being reason. Is punishing world for not being... Like in head. Is always reason. World should be different, is reason."
-Ed, from Digger

Scalia and Thompson are, honestly, just amazing in the historical context that they live within.

Thomas is, in particular, despairingly terrible to fathom in the context of being a chief justice of the most powerful nation on earth. When he becomes a matter of legal history, he will be one of the strangest oddities we have in the history books. It will be difficult to imagine that this man was a supreme court justice in the 2010's. To give you an idea about how weird it is, it would be like if Strom Thurmond was 80 today, alive, was the vice president, and was elected on the platform of returning anti-miscegenation laws into full federal force. That's how weird it is that Thomas is a supreme court justice today.

Thomas and Scalia's originalism is incomprehensibly asinine; their positions on social matters are astonishingly regressive and repressive, and Thompson's positions on cruel and unusual punishment, guantanamo, and several other issues (along with Scalia's foreboding compliance with such) make you realize that you are looking at the two most dangerous people to the future of this country. Period.

This comes off as plentiful hyperbole, it really does. But I can get back to that later, if anyone really wants to take a look at some despairingly terrible stuff. They need to retire or die. Few things are legitimately as important to the progress of this nation.

"when did it become unconstitutional to exclude homosexual couples..." WTF? when was it stated in the constitution that it was acceptable to exclude them? isn't that what the whole case is about?

there was an op-ed in the NYTimes the other day speculating what sort of shit scalia would come out with, since he has already made it very clear that he is homophobic (which prior statements, one would think, would require his recusal, but of course Our Lord Scalia would never stand aside) - anyway, it sounds like his inappropriate remarks have been increasing of late - one wonders if it is a sign of dementia, or just his increasing certainty that he is entitled to say or do whatever he likes, because he is the Great Justice Scalia. unfortunately, at 78, he could be good for another 10 yrs. he is the prime example of why we should stop appointing justices for life.

btw - any response from the other justices? sotomayor slapped him around a bit on voting rights; it would be nice if that sort of thing became a regular feature._________________aka: neverscared!

thomas should never have gotten to the supreme court. he had terrible ratings from the ABA, he was clearly not qualified, and he has done nothing since to suggest that that judgement was in error. unfortunately, his appointment became all about what you (or specifically, the senate) believed about sexual harassment. and what they believed was, they didn't want to hear about it._________________aka: neverscared!

JUSTICE BREYER: Am I not clear? Look, you said that the problem is marriage; that it is an institution that furthers procreation.

MR. COOPER: Yes, Your Honor.

JUSTICE BREYER: And the reason there was adoption, but that doesn't apply to California. So imagine I wall off California and I'm looking just there, where you say that doesn't apply. Now, what happens to your argument about the institution of marriage as a tool towards procreation? Given the fact that, in California, too, couples that aren't gay but can't have children get married all the time.

MR. COOPER: Yes, Your Honor. The concern is that redefining marriage as a genderless institution will sever its abiding connection to its historic traditional procreative purposes, and it will refocus, refocus the purpose of marriage and the definition of marriage away from the raising of children and to the emotional needs and desires of adults, of adult couples. Suppose, in turn--

JUSTICE KAGAN: Well, suppose a State said, Mr. Cooper, suppose a State said that, Because we think that the focus of marriage really should be on procreation, we are not going to give marriage licenses anymore to any couple where both people are over the age of 55. Would that be constitutional?

MR. COOPER: No, Your Honor, it would not be constitutional.

JUSTICE KAGAN: Because that's the same State interest, I would think, you know. If you are over the age of 55, you don't help us serve the Government's interest in regulating procreation through marriage. So why is that different?

MR. COOPER: Your Honor, even with respect to couples over the age of 55, it is very rare that both couples -- both parties to the couple are infertile, and the traditional --

(Laughter.)

JUSTICE KAGAN: No, really, because if the couple -- I can just assure you, if both the woman and the man are over the age of 55, there are not a lot of children coming out of that marriage.

Thank you for the light moment, Sam; I was about to get pissed as hell about that "emotional needs and desires of adults" crack. If there is a Mrs. Cooper, I truly feel sorry for her._________________I am only a somewhat arbitrary sequence of raised and lowered voltages to which your mind insists upon assigning meaning

i have really been impressed by how much the whole prop 8 fight illustrates that the defenders of marriage really don't have a clear idea of what, exactly, they are defending. 'cause it's clearly not the whole supportive partnership in-sickness-and-in-health thing, it can't really just be about children because you can't guarantee going in that the relationship is going to produce children unless you have a fertility requirement built in (and how would you say that was _not_ government overstepping it's rightful bounds?), it's not supposed to be about religion because separation between church and state (except that really is the whole reason that they hate the idea).....so what, exactly, is the purpose of this institution that they are defending unto death?_________________aka: neverscared!

i have really been impressed by how much the whole prop 8 fight illustrates that the defenders of marriage really don't have a clear idea of what, exactly, they are defending.

Do you remember the whole intelligent design 'wedge' strategy? This is in a similar vein, and I think is the best way to explain the mentality and methodology of what Cooper and company are arguing.

It also is a consistent explanation for the defense of perry v. governator back when this was getting heard and ruled on in CA.

the short copy is: "So we're all assembled here and we know that the reason we must keep the gays from getting married is because that is not God's plan or design for marriage, and we think that homosexuality is a sin and we do not wish to see gays be given this form of social legitimacy or capacity to marry just like we do. But we know that because of creeping secularism on account of the corruption of this nation have left us in a position where we cannot defend marriage for the actual reasons why we are defending marriage (because we're keeping marriage the way we think it should be because of our faith and our reading of scripture). We have to strategize and concertedly create a separate argument that we will claim is the purpose of our anti-gay law, which can pass a secular test and won't be ruled invalid based on the establishment clause or running afoul of previous rulings about how law must have secular purpose, not act to promote a religious requirement. So we're going to come up with a surface reasoning that we think will pass as a secular reason why the government should restrict marriage from gays and keep itself as a strictly man-and-woman deal."

So Cooper & co, much like Dennis Hollingsworth in California, were attempting to work off of the best possible argument that they could craft, to attempt to defend prop 8 and say that the state had a rational basis or vested interest in denying gays and lesbians marriage licenses. Because that's what you had to do, because prop 8 was the state actively coming in and removing rights that the gays already had in california, and I guess (but don't know) that this put it in the realm of strict scrutiny.

The end result is that I (and most people) think they are defending prop 8 (and will be defending DOMA) using language that describes marriage in a sense that they probably don't believe and which many have noted is excruciatingly soulless:

Quote:

In explaining the legal merits of their cause (equal protection under the 14th Amendment; Loving v. Virginia, in which the court called marriage one of the “basic civil rights of man” as well as a “fundamental freedom”), the challengers are also adept at claiming emotional territory.

They point out that “in their 65-page brief about marriage in California,” the supporters of Proposition 8 “do not even mention the word ‘love.” Nor do the supporters understand “the privacy, liberty, and associational values” that underlie marriage. They believe the institution exists so that society can channel “heterosexual potential parents into ‘responsible procreation.’”

Arguing against this “cramped,” “state-centric,” “utilitarian” take — which doesn’t make sense because the state could theoretically deny any infertile couple the right to marry — the challengers emphasize that marriage involves “love, commitment and intimacy.” They present themselves as champions of the human heart.

As they frame the debate, it’s man versus machine. So-called traditionalists see marriage like a state-owned factory for creating new citizens, while those who endorse equality value the rights and feelings of individuals.

... but which they have to, because it's the best way they can torturously grasp for anything that might even possibly support a rational basis/vested interest for the state to deny gays marriage.

Underneath, of course, for 99.999999% of these people, it's all about God. They're just doing exactly what the Discovery Institute did with the wedge strategy in order to try to protect the enforcement of Christian ideals on our laws and systems, by dressing it up secular.

/clap. Thanks a lot for putting in words a complex idea I couldn't express better. That whole paragraph is going to be pasted a lot in conversations with my english speaker friends (and translated, to my regular ones xD)_________________Be mellow
Be compassionate